This short course meets Monday-Thursday, 8:20-9:50 a.m., March 30-April 9.

The point of this short course is to examine some persistent legal problems – persistent elsewhere as well as in the United States – concerning the making and application of law. These problems can be formulated as general questions:

1) What makes a legal directive legal? In other words, what marks out a law as law rather than, say, a moral requirement or a recommendation as to appropriate contextual behavior?2) How might we best explain the relationship between law and morality? Does the binding force of a law depend upon its moral content? Are moral standards part of the law itself, or are they better understood as reasons which are independent of the law but which are invoked by judges in order to justify their interpretations of legal rules and constitutional provisions?3) Do judges make law? Or rather: given that judges do, at least in some modest sense, make law (particularly when they develop the common law), what, if anything, constrains their law-making function? 4) Should law making be guided by the principle of utility? Is the mark of a good law the fact that it generates the greatest happiness for the greatest number?5) What distinguishes good from bad judicial decisionmaking?6) What justifies judicial review of legislation? (Or, to put it the other way round, how might anyone ever defend a system in which courts aren’t allowed to rule on the legality of legislation?)

This isn’t supposed to be a complete list of persistent legal problems, but it’s as many as we’ll manage to address in a 1-credit course. The point of setting the course up in terms of these questions is to try to ensure that it has some structure; in class, we’ll consider the questions in the order I’ve set them out here – though not all of the questions will be covered in only one class (the point of the sixth class, for example, is to consider a reading which has us think about questions 2-5).

The assigned readings are quite short. It will be important that you read them: while the classes won’t be narrowly focused on the readings, all of them are integral to the course (including the take-away exam). The course is suitable for all JD and LLM students – there are no course prerequisites – and the idea is that it will provide you with different perspectives on other parts of your syllabus, and familiarize you with arguments that you might want to draw upon when studying, and completing assignments for other law courses.